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The Death Penalty
Sep 30, 2009

When your Convictions meet your Reality

Pat McCann, a terrific Houston based criminal defense attorney, got convicted cop killer Carl Wayne Buntion a new punishment hearing today, a rarity from the CCA (Texas Court of Criminal Appeals, the highest state court of appeals for criminal law in Texas).  It appears new Harris County DA Pat Lykos will not appeal and is preparing to convince a new jury death is appropriate for Buntion.

In an unsigned 4 page opinion, per curiam in legalese, the CCA held that Buntion's constitutional rights were violated when the jury instructions concerning punishment did not give the jury any meaningful way to determine if Buntion's life should be spared.  This decision is based on Penry II, for those familiar with death penalty law.  The jury must be given a means to consider any factor that could cause the jury to spare a defendant's life.  The trial judge had rejected a defense request for such an instruction in 1991.

The opinion reflects a reality of the Texas legal system - elected judges are very concerned with the political consequences of their decisions.  For years, cases like this were routinely rejected by the CCA.  Judges on that court fought over who would author the next opinion  keeping the nation's busiest death chamber humming along.  In election year ads, these same judges boasted how they kept death row full and were eager to take credit for it.

Then, the US Supreme Court got tired of it.  Death, SCOTUS wrote repeatedly, is different.  Even conservative jurists like Scalia began to express concern, if not palpable outrage, at the CCA for ignoring precedent and trying to find reasons to justify death sentences.  The message was and is clear - do it right, or don't do it at all.

The defense bar also stepped up to the plate, and really top flight attorneys began taking death penalty cases, working tirelessly to ensure no more sleeping lawyers during trial, no more promises to have the case tried in 10 days or less, no more attorneys ill trained and equipped to defend those facing the ultimate punishment.  Jury consultant Robert Hirschorn said it best - anyone who saves a life doing capital work merits a special place in Heaven.

The fact that no judge would sign his/her name to the opinion tells you everything you need to know about why a new punishment hearing was granted.  These judges face re-election soon.  The national spotlight, long on Texas, has never been more intense.  But none of these politicians in black robes had the moral fiber to sign their name to an opinion required by law.

I am something of an anomoly in death penalty defense.  I believe in capital punishment.  Some crimes, including killing cops, are so heinous society has the right to demand your life as punishment.  In the 7 capital defenses I have been part of, none of our clients got a death sentence, and I believe the jury got it right in each instance.

I also believe the way the death penalty is practiced in Texas is blatantly unconstitutional.  Defense attorneys, even today, are not provided with adequate resources to investigate and defend these cases.  Some trial judges seem to view these defenders as nuisances and go out of their way to make the case as difficult to defend and try as possible.

McCann, Buntion's attorney, has done the entire legal community proud by tenaciously fighting for his client's right to a fair hearing.  He merits that special place Hirschorn proclaims, and not just for his work here.  I am heartened by his success, and invigorated for my next criminal case, even though I am sure the stakes will not be as high.  McCann has done us all proud.

But I cannot end this blog there, because it would be dishonest to do so.  I am also a troubled soul because, in this instance, I have a personal stake.  Here, I have great feelings for the victim.

I moved to Houston to attend law school shortly after this crime.  I did not know Jim Irby.  I do not know his son or immediate family.  But I do know the impact the man had on his fellow man and that, dear reader, makes all the difference.

Jim Irby came from a family of cops.  He was able to get badge number 189, the badge his grandfather wore as a Houston police officer.  He  was gunned down by Buntion, who had just recently been paroled, during a routine traffic stop.  Buntion was a passenger in the car, got out, and shot Irby in the forehead.

Jim Irby was a cowboy cop, before that term took on a negative connotation.  Irby was a staunch supporter of the Houston Livestock Show & Rodeo.  He did not seek to buy champion or award winning farm animals at the junior auctions, preferring instead to buy the critters of kids who did not fare as well.  Irby believed keeping youth involved in 4-H and other programs kept them out of trouble, gave them something to strive for, and had its own rewards.  So, Jim would lead his friends into the auctions and try to talk to the kids before the show.  He would tell them about the sense of accomplishment they should feel, even if they didn't have the prize pig or champion steer.

He would buy pens of skinny chickens from kids so poor they wore mended clothes to present their animals.  Jim Irby would challenge other buyers to tequila drinking games, loser having to buy the sorriest animal in the next auction.  If Irby won, he would go to that auction and start a bidding war to drive the price up so the kid would get more money for college.

There are stories of Irby, the cop, catching kids with a little bit of marijuana.  Instead of arresting the kids like we seem to do to every kid today, he gave them a stern lecture and made them destroy their stash.  This was before everyone had a cell phone, but he would contact their parents if he could.  There was more than one kid who came from such a bad home they started to look to Irby as their role model.

I know two tales of Irby helping out baby lawyers overwhelmed by the cases.  He would talk to prosecutors on behalf of defendants and victims alike.  And at the end of the day, the job stayed at the job.

Shortly after I graduated law school, I was approached by friends of Jim Irby to prepare the paperwork for a charity that honors him, the 189 Club, Inc.  By way of total disclosure, the charity is in no way affiliated with the Irby estate.  This charity keeps the floors up at junior auctions around Southeast Texas, and its members are known for the same dares and pranks.  A fitting tribute to the man I've come to know as a historical figure.

Many of the members of the 189 Club, Inc. have contacted me today, distressed at the news his killer is getting a new hearing.  Some old wounds never quite heal.  I share that pain.

I also try to remind them Jim Irby knew about the flaws in the system.  His conduct showed he was well aware of this.  While the man I know through his friends would have preferred a one on one fight to settle this matter, Jim Irby believed in the system and in juries.

We are not measured by the money we make.  We are measured by the impact we have on those around us, for better or for worse.  As we prepare for a new jury to decide if a death sentence is appropriate for Jim Irby's killer, I hope his friends find solace in the profound manner in which he touched lives during his all too short time among us.
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